05 March, 2008

Is Kenya Bus over speeding to enforce its colourful trade marks?

The Daily Nation reports that Kenya Bus Service (KBS) has put on notice other bus companies who it perceives are riding on its brand colours. The bus company Managing Director is quoted as saying that “we … intend to place an injunction if they do not stop using our brand colours.” It appears copycats are adorning their buses with colours similar to those of KBS and this is creating confusion among the passengers who use the colours to board the buses.
The report says that the bus company has registered a number of Trade marks under the Trade Marks Act, notably trade mark 59453(the words Kenya bus service), 59664 (device of a bus in colour) and 59665(device of a bus in greyscale).


I pick no quarrel (For now) with the word mark, but a whole bus as a trade mark! Really, which is the trade mark here or the essential element for that matter? I wonder how the company would convince a court that its trade mark, a bus, is adapted to distinguish its transport services from those of others. To be fair, the trade mark carries a disclaimer to the effect that the mark is restricted to the colours sky blue, blue and navy blue.



Well, KBS is not alone in wanting to claim trade mark rights in some colours; In BAT v Cut Tobacco [2007] eKLR, in a claim of passing off and trade mark infringement, BAT (proprietor of the trade mark SPORTSMAN) objected to the use of the colour red in the defendant’s cigarettes, HORSEMAN. The court of appeal did not agree and in effect ruled that use of the colour red as the predominant colour in a packet of cigarettes is not the exclusive preserve of anybody and that there can be no propriety rights in a particular colour.

Perhaps in trying to identify the essential elements of the composite marks, the Court dissected the two marks into their constituent’s parts and dealt with the issue of colour separately from the similarity of the two words making up the respective get ups of the marks.



Applying the same principle here, would it be the case that the court may decide to break down the bus into its constituent parts and find for example that the tyres of the offending bus are similar to the registered trade mark and therefore there is infringement? And could the offender argue in defence that the number plates are neither identical nor deceptively similar!

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